Cool, Refreshing Legislation for Philip Morris

Cool, Refreshing Legislation for Philip Morris

by

Paul Smalera

Indulge me in a thought experiment. Pretend that drinking something
called "lethalcoffee" has been found to cause cancer. There are five or
six kinds of gross-flavored lethalcoffees that hardly anyone drinks,
like chocolate, cherry, banana, and vanilla. But there's one flavor,
mint, that 30 percent of all lethalcoffee drinkers are hooked on. And
there's one particular group of lethalcoffee drinkers-let's call them
investment bankers-who drink mint lethalcoffee like there's no tomorrow.

Allow 40 years for several million lethalcoffee-related deaths to
pile up before the pandemic is taken seriously by the government. (Try
to put aside any negative feelings you harbor about investment
bankers.) Finally, Congress introduces a Lethalcoffee Safety Act that
has a chance of becoming law. Would you imagine that law would:

A) Order the FDA to regulate lethalcoffee but withhold from the agency the power to ban it? B) Ban every flavor of lethalcoffee except mint, the one most people drink? C) Make it really hard for people to sell badcoffee, a new but much less hazardous cousin of lethalcoffee? D) Be co-authored by Starbucks (SBUX)?

How about "E," all of the above? Because that's what Congress is
proposing to do in the Family Smoking Prevention and Tobacco Control
Act, probably soon to head to President Obama's desk for a signature.
Mint-flavored lethalcoffees are menthol cigarettes. The 80 percent of
investment bankers who prefer menthols are African-Americans. And the
bill was largely shaped by Philip Morris (now called Altria), which
sells more cigarettes than nearly every other American tobacco company
combined.

"It is a dream come true for Philip Morris," Michael Siegel, a
professor at the Boston University School of Public Health, told me.
"First, they make it look like they are a reformed company which really
cares about reducing the toll of cigarettes and protecting the public's
health; and second, they protect their domination of the market and
make it impossible for potentially competitive products to enter the
market." Other tobacco companies have taken to calling the bill the
"Marlboro Monopoly Act of 2009."

It's hard to fathom where Congress is finding the political cover
necessary to pass an industry-sponsored love letter like this one. But
it's coming from Philip Morris' partner in crafting the legislation: a
nonprofit anti-smoking organization called Campaign for Tobacco-Free
Kids.

As early as 1998, Philip Morris executives were worried about the
continued existence of their industry. Big Tobacco was locked in a
battle with Congress over advertising and product regulations. And it
was reeling from the $264 billion settlement in the lawsuit brought
against it by 46 state attorneys general over Medicare costs for
smokers. The future was hazy, and the tobacco companies' ability to
fight costly legal battles for the indefinite future was in doubt.

So, as Roll Call recounts, Philip Morris executives made a
huge shift in tactics. Rather than beat back every attempt at industry
regulation, they initiated the secret Project Sunrise, an effort to
help craft those regulations. Part of the strategy was to work with the
very anti-smoking groups they had fought for years. Big Tobacco decided
to sue for peace in order to win at the negotiating table.

Philip Morris found a willing partner in the Campaign for
Tobacco-Free Kids. It was among the more moderate anti-smoking groups,
and some of its top staff had worked for Sen. Tom Daschle, so they were
well-versed in the art of legislative compromise. The existence of an
agreement between Philip Morris and the Campaign is how Rep. Henry
Waxman, the bill's main sponsor, has justified the perverseness of
Philip Morris' support for a supposed anti-smoking bill.

"Don't let perfect be the enemy of good," has been the old saw the
administration uses to admonish interest groups dissatisfied with
compromise legislation. But opponents of this bill on both sides are
asking, What's the enemy of terrible? Isn't it this bill, which is
racist, protectionist, cynical, and misguided? And barring an
improbable veto, it will soon become law. Nowhere is the bill's perfidy
more obvious than in its failure to ban menthol cigarettes.

The National African American Tobacco Prevention Network released a
statement on the bill last May that read, "Tobacco legislation that
treats menthol differently from other flavoring additives is
incomplete." This is in response to studies showing that menthols are
far more addictive then other cigarettes and far harder to quit, no
matter what race the smoker is.

And last July, the Harvard School of Public Health released a study
showing that tobacco manufacturers carefully controlled the menthol
content of cigarettes to maximize its masking of harsh tobacco smoke,
even creating new brands for longtime smokers who require increasing
amounts of menthol to maintain its numbing, cooling effect.

Menthols accounted for a quarter of the roughly 370 billion
cigarettes smoked domestically in 2006 and are more popular here than
anywhere else in the world. So far, neither Waxman nor Sen. Ted
Kennedy, who shepherded the Senate version through his Health,
Education, Labor and Pensions Committee last week, has specifically
defended the exclusion of a menthol ban. Waxman notes that after an FDA
study, menthol could be banned as well but didn't explain why menthol
merited a study period and chocolate cigarettes did not.

By the numbers, the menthol exemption practically paints a
bull's-eye on the lungs of African-American smokers. So you might
presume that African-American Congress members have an interest in
exposing the bill's shortcomings. But of the 42 voting members in the
Congressional Black Caucus, 20 are co-sponsors of the bill. Philip
Morris' parent company has donated more than $1.5 million to the caucus
since 2002 and thousands more to individual members, including James
Clyburn, the House whip, and Edolphus Towns, chair of the House
committee that favorably reported the smoking legislation. Towns has
been dubbed the "Marlboro Man," thanks to his long-standing
relationship with Philip Morris. And donations must have been easy for
Philip Morris to file; a CBC advisory board member, Shuanise
Washington, was treasurer of the organization while she was also
Altria's (MO) vice president of government affairs. The tobacconist and
the caucus even share a graphic designer.

Ten of the remaining, nonsponsoring CBC members hail from
tobacco-producing states that oppose the bill primarily because it puts
their home-state tobacco companies at a huge disadvantage to Philip
Morris. That leaves 12 African-American Members of Congress who
withheld their names from the bill, despite menthol cigarettes' being
linked to 14.6 percent of all African-American deaths in 2006. And
there are, of course, 217 other co-sponsors, mostly white, ignoring the
fact that despite menthol's cultural identification with 4 million
African-Americans, double that number of white smokers also partake in
the minty tobacco.

The next most popular flavored cigarette, clove, accounts for .09
percent of the market. Those cigarettes will be banned under the bill.
Indonesia, which provides 99 percent of the clove cigarettes to the
U.S. market, has complained to the U.S. trade representative about the
disparity with menthol. If Indonesia brings a protectionist complaint
to the World Trade Organization, it would compel our government to
prove cloves were banned for health reasons. Namely, the United States
would have to show that the flavor of cloves enhances cigarettes'
addictive properties. If it can't, the ban could be considered a trade
violation.

It's a lose-lose proposition. If the United States proves it banned
clove cigarettes strictly for health reasons, it would be admitting
that menthol cigarettes, manufactured domestically, are getting a free
pass despite their clovelike increased health risks. Which puts the
FDA, as the tobacco regulator, in the position of justifying a ban on
cloves but not menthols. This is the type of case Siegel refers to when
he told me the bill lets "the tobacco companies produce and market the
cigarettes and the FDA approve them. The ramifications of this bill go
far beyond tobacco control. The bill completely undercuts and
undermines the entire system of federal public health regulation in
this country."

In other words, the United States will have two choices in the above
scenario, both hairy: protect the FDA's independence by admitting it
banned cloves but not menthols only to protect Philip Morris' market
share or let the FDA manufacture an explanation, contrary to recent
studies, by which menthol cigarettes, which are used to lure children
to smoke, are just as safe as unflavored cigarettes.

"The fact that the Campaign for Tobacco-Free Kids negotiated this
bill with Philip Morris has created a very strange situation," says
Siegel. Tobacco-Free Kids currently lists 1,018 organizations that
support the bill, but many independent public health experts like
Siegel and Elizabeth Whelan, president of the American Council on
Science and Health, believe political expedience has forged those
alliances. Siegel told me that one part of the bill, which requires the
FDA to regulate 4,000 individual chemicals in cigarettes' makeup, even
as at least 6,000 other chemicals in cigarettes remain undiscovered and
of unknown consequence, "flies in the face of science."

Continues Siegel: "Most health groups are standing
shoulder-to-shoulder with Philip Morris in lobbying for this
legislation. [But] smaller companies are opposing it. The reason the
small companies are standing in opposition is that the bill would
essentially freeze current market share." Indeed, a statement by R.J.
Reynolds says the bill would make it "virtually impossible for tobacco
manufacturers to develop and introduce products that have the potential
to reduce the risk of tobacco usage." As troubling as the menthol
exemption is, the strangling of these alternative products, and of the
competition to Philip Morris, is equally stunning.

Reynolds, in fact, recently rolled out a product developed in Sweden
called Snus. The pouches of moist tobacco are sort of a spitless chew
for smokers who don't want to go on the patch. While still a health
risk, as a replacement for an addicted smoker, studies showed that snus
are a "pathway from smoking," rather than, as menthols are, a gateway
to it. That's because while menthols taste like a vaporized dinner
mint, snus taste more like a "soggy cigarette," according to Forbes.
In other words, the product isn't nearly as attractive to young people
as it is to hard-core smokers who need their nicotine fix in nonsmoking
environments. One study estimates that if all of Europe switched from
smokes to Swedish snus, 200,000 fewer people a year would die of lung
cancer there.

Then there are electronic cigarettes, tobaccoless sticks that
dispense nicotine vapor. These gadgets are already under FDA scrutiny,
even though the associated health risks compared to snus are thought to
be slimmer still. Anecdotal stories about the novel devices show people
are successfully quitting smoking while using them. The smoking bill
would further empower the FDA to take action against these cigarette
replacements, even though they use no tobacco and aren't made by
cigarette manufacturers.

Yet the bill specifically denies the FDA the ability to require
nicotine, the main addictive agent in cigarettes, to be eliminated from
them. Siegel says: "The industry doesn't have to worry about nicotine
being removed and therefore not being able to addict our nation's
youth. The age of sale of tobacco cannot be increased. The places where
tobacco is sold cannot be restricted. For Philip Morris, there is no
longer any serious threat of competition from new, potentially safer,
products." (Philip Morris, unlike its competitors, has focused new
product development on cigars and chew, two products less affected by
the legislation.)

The marketing and advertising restrictions in the bill also seem
targeted primarily at Philip Morris' competitors. But even so, Philip
Morris, with either towering disingenuousness or a wicked sense of
humor, has signaled it will fight those very restrictions, which it
used as a chip with legislators and the Campaign to get the bill
written. With nary a mention of its role in co-writing the bill, a
statement from the company called it "imperfect."

Matthew Myers, the Campaign For Tobacco-Free Kids' director,
continues to play the fool. He told ABC News, "Our hope is that the
Senate HELP committee will resist all of those efforts to weaken the
legislation." It's hard to even understand what Myers means-the
doublespeak surrounding the bill is so great its passage will surely be
hailed as a victory for anti-tobacco forces. And if Congress could find a way to make the bill any weaker, even the Marlboro Man himself couldn't help but crack a smile.

Further

Almost everyone hates Indiana's egregious "religious freedom" law - cue fierce backlash from businesses, churches, states, cities, legal experts and unhateful Hoosiers - but the most creative response came from an enterprising libertarian who delightedly used his new religious freedom to found the First Church of Cannabis - "One Toke, One Smile, One Love" - aimed at "celebrating all that is good in our hearts." His goal: "A House of Hemp Built with Love," and presumably lots of munchies.